Opinion
No. SC10–541.
2012-07-3
Robert GORDON, Appellant(s) v. STATE of Florida, Appellee(s).
Robert Gordon, a prisoner under sentence of death, appeals the summary denial of his successive motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.851. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. This Court affirmed his conviction and sentence on direct appeal in Gordon v. State, 704 So.2d 107 (Fla.1997). The denial of postconviction relief after an evidentiary hearing was affirmed in Gordon v. State, 863 So.2d 1215 (Fla.2003). Federal habeas relief was denied in Gordon v. Crosby, No. 8:04–cv–355–TMSS, 2006 WL 2474068 (M.D.Fla. Aug. 25, 2006), certificate of appealability denied Gordon v. Secretary of Corrections, 479 F.3d 1299 (11th Cir .2007). Gordon filed the present successive postconviction motion pro se, with appointment of standby counsel, in September 2009, raising claims under Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972). The circuit court denied the claims as procedurally barred and untimely under the rule. Gordon was provided appellate counsel and this appeal ensued.
Gordon claims that the State failed to disclose an FBI report concerning analysis of DNA on an item of evidence, a sweatshirt found in a motel room occupied by Gordon and his co-defendant. Gordon contends the report proves that the State's DNA expert who testified at trial gave false testimony that the DNA in a bloodstain on the sweatshirt matched the DNA of the victim. Gordon also claims that newly discovered evidence consisting of testimony given by the defense expert at Gordon's 2001 initial postconviction hearing proves that the State's DNA analyst falsely testified at trial that he personally performed the DNA testing. Finally, Gordon claims that the State intentionally destroyed a second bloodstain sample from the sweatshirt which contained unknown DNA.
The circuit court concluded, based on the files and records before the court, that the facts upon which Gordon makes his claims were not newly discovered and, thus, his successive motion filed more than one year after he discovered or could have discovered the facts with due diligence is untimely under the rule. See Byrd v. State, 14 So.3d 921, 924 (Fla.2009) (“Claims of newly discovered evidence must be brought within a year of the date the evidence was or could have been discovered through due diligence.” (citing Glock v. Moore, 776 So.2d 243, 251 (Fla.2001))). We agree that the record supports this finding. All the evidence upon which Gordon relies was known to him or his counsel, or was discoverable by due diligence, in 2002 or earlier. We also conclude that even if his claims were not procedurally barred under the rule, the claims are conclusively refuted by the record and without merit. The preliminary FBI report cited by Gordon, even if not disclosed to him until after his trial, does not establish that the FBI agent who testified as to the DNA match lied at trial. Instead, the report states that the processing was not complete as of that date. In addition, the testimony of Gordon's DNA expert at the evidentiary hearing held in his first postconviction proceeding fails to establish that the State's expert DNA witness who testified at trial lied about personally performing the analysis. Moreover, the defense expert agreed that the analysis correctly matched the bloodstain to the victim. Finally, there is no merit to Gordon's claim that the State intentionally destroyed DNA evidence from the sweatshirt in order to avoid comparing the DNA in that stain to Gordon's blood. The testimony at trial and in Gordon's initial postconviction proceeding established that the sample was innocently consumed in testing, and Gordon has failed to allege any facts controverting this testimony or supporting a finding of bad faith. See McDonald v. State, 952 So.2d 484, 494–95 (Fla.2006) (reiterating that if evidence is lost or consumed during testing, the burden is on the defendant to show bad faith in the State's failure to preserve the evidence).
Accordingly, the trial court's denial of postconviction relief on all claims is hereby affirmed.